Thirteen state attorneys general have joined in an amicus curiae brief [text, PDF] urging the US Court of Appeals for the Ninth Circuit to overturn a federal court decision [JURIST report] striking down California's ban on same-sex marriage [JURIST news archive]. The brief argues that the district court exceeded its authority because a federal court cannot "reorder this foundational legal and social institution." It goes on to state that homosexuals do not constitute a suspect class requiring strict scrutiny, and have never been treated as such by the US Supreme Court or the Ninth Circuit. Citing a recent Texas appellate court decision [JURIST report], and those of several other state and federal courts, the brief urges the court to apply rational basis review, one which it argues is a determination of law making factual trial court findings irrelevant. The states went on to say that this standard was misapplied by the lower court because it was "logically impossible" to find that Proposition 8 was an irrational action by state voters, who could have rationally determined that same-sex marriage would weaken the institution of marriage. The brief also argues that the Supreme Court had already set binding precedent on the issue:
From a strictly legal perspective, this is an easy case to decide. In Baker v. Nelson, the Minnesota Supreme Court held that limiting marriage to opposite sex couples violated neither due process nor equal protection. The United States Supreme Court dismissed the appeal for want of a substantial federal question. This resolution is dispositive. ... In any event, voters and legislatures in forty-one states have affirmatively rejected the notion of same-sex marriage, either by constitutional amendment or legislation, and voters or legislatures in four other states have left in place statutes that plainly assume the opposite-sex definition of marriage. Thus, as in Glucksburg, "[t]he history of the law's treatment of [same-sex marriage] in this country has been and continues to be one of the rejection of nearly all efforts to permit it. ... That being the case ... the asserted 'right' ... is not a fundamental liberty interest protected by the Due Process Clause."According to the brief, the district court's rationale would have wide ranging logical implications, including imputing constitutional protections to polyamorous and intra-familial marriages.
Last week, officials for Imperial County, California, announced that the county had submitted its opening brief [JURIST report] in an appeal to overturn the district court decision. District Judge Vaughn Walker denied Imperial's request to intervene in the original suit in August, stating that the request was not timely. Walker has cast doubt on the ability of defendant-intervenors in the suit to appeal the district court decision because they are not original parties to the suit and therefore lack the necessary standing. If the Ninth Circuit allows Imperial to intervene, the court will then determine whether the county has standing to appeal Walker's ruling. The state of California, the original defendant to the suit, has decided not to pursue an appeal. Earlier this month, a judge for California's 3rd District Court of Appeal ruled that neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown is required to appeal the decision [JURIST report]. In his decision, Walker held that the same-sex marriage ban was unconstitutional under both the Due Process Clause and the Equal Protection Clause [Cornell LII backgrounders] of the Fourteenth Amendment.